Bill C-75 (Historical)

An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts

This enactment amends the Criminal Code to, among other things,
(a) modernize and clarify interim release provisions to simplify the forms of release that may be imposed on an accused, incorporate a principle of restraint and require that particular attention be given to the circumstances of Aboriginal accused and accused from vulnerable populations when making interim release decisions, and provide more onerous interim release requirements for offences involving violence against an intimate partner;
(b) provide for a judicial referral hearing to deal with administration of justice offences involving a failure to comply with conditions of release or failure to appear as required;
(c) abolish peremptory challenges of jurors, modify the process of challenging a juror for cause so that a judge makes the determination of whether a ground of challenge is true, and allow a judge to direct that a juror stand by for reasons of maintaining public confidence in the administration of justice;
(d) increase the maximum term of imprisonment for repeat offences involving intimate partner violence and provide that abuse of an intimate partner is an aggravating factor on sentencing;
(e) restrict the availability of a preliminary inquiry to offences punishable by imprisonment for a term of 14 years or more and strengthen the justice’s powers to limit the issues explored and witnesses to be heard at the inquiry;
(f) hybridize most indictable offences punishable by a maximum penalty of 10 years or less, increase the default maximum penalty to two years less a day of imprisonment for summary conviction offences and extend the limitation period for summary conviction offences to 12 months;
(g) remove the requirement for judicial endorsement for the execution of certain out-of-province warrants and authorizations, expand judicial case management powers, allow receiving routine police evidence in writing, consolidate provisions relating to the powers of the Attorney General and allow increased use of technology to facilitate remote attendance by any person in a proceeding;
(h) re-enact the victim surcharge regime and provide the court with the discretion to waive a victim surcharge if the court is satisfied that the victim surcharge would cause the offender undue hardship or would be disproportionate to the gravity of the offence or the degree of responsibility of the offender; and
(i) remove passages and repeal provisions that have been ruled unconstitutional by the Supreme Court of Canada, repeal section 159 of the Act and provide that no person shall be convicted of any historical offence of a sexual nature unless the act that constitutes the offence would constitute an offence under the Criminal Code if it were committed on the day on which the charge was laid.
The enactment also amends the Youth Criminal Justice Act in order to reduce delays within the youth criminal justice system and enhance the effectiveness of that system with respect to administration of justice offences. For those purposes, the enactment amends that Act to, among other things,
(a) set out principles intended to encourage the use of extrajudicial measures and judicial reviews as alternatives to the laying of charges for administration of justice offences;
(b) set out requirements for imposing conditions on a young person’s release order or as part of a sentence;
(c) limit the circumstances in which a custodial sentence may be imposed for an administration of justice offence;
(d) remove the requirement for the Attorney General to determine whether to seek an adult sentence in certain circumstances; and
(e) remove the power of a youth justice court to make an order to lift the ban on publication in the case of a young person who receives a youth sentence for a violent offence, as well as the requirement to determine whether to make such an order.
Finally, the enactment amends among other Acts An Act to amend the Criminal Code (exploitation and trafficking in persons) so that certain sections of that Act can come into force on different days and also makes consequential amendments to other Acts.

Criminal Code

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Madam Speaker, I am really pleased to join the debate. I have been listening for a few hours to what different members believe are the most important parts of the bill, the biggest defects and the biggest advantages given to it.

I thought the member for St. Albert—Edmonton gave one of the best, most succinct rundowns of the bill in terms of its many defects. It is an omnibus justice bill. I sit on the Standing Committee on Finance, so we are well versed on omnibus legislation there for three years now from the government, a government that during the last election promised not to ram any more omnibus legislation through the House. It was a promise that they have continuously broken since then. The Liberals failed to lived up to their promise.

The lens I want to give to this piece of legislation is mostly consideration of some of the hybridized offences in it. Like I have mentioned in the House before, I am not a member of the legal profession, so my eyes on it are basically the eyes of any regular member of the public and what they would think are serious offences versus non-serious offences.

We have been told that one of the reasons for this legislation is that it would drastically reduce the bottleneck at our provincial courts, that the court system would be somehow liberated from having to deal with all of these cases that are clogging it up and all the court delays.

With the Jordan decision rendered by the Supreme Court of Canada, that bottleneck of court cases is even more important now because we have individuals being charged with offences but never seeing a court or going through the system to be judged. I would call this piece of legislation as the Yiddish proverb says, the gift that is not as precious as first thought. There are so many defects that the member for St. Albert—Edmonton pointed out that would actually create an even greater bottleneck at the provincial courts.

Those courts closest to the people are the ones that deal with the vast majority of criminal offences. They deal with family law, young persons aged 12 to 17, traffic bylaw violations, regulatory offences, small claims and preliminary inquiries. The judges are actually doing most of the work. Every province has been set up slightly differently in how they proceed with different types of offences. Many of these would not be directly affected by this legislation, but the ones that deal with criminal offences would be because a great deal of the hybridized ones would be going to the provincial courts. The Liberals are not making it simpler, they are actually creating a greater bottleneck.

I thought that it was the House of Commons and the Senate that together decided what was a serious enough offence to warrant five to 25 years, not prosecutors. It is this House that decides on behalf of our constituents what are serious offences and what is deserving of consideration by a judge, whether a judge should consider the maximum offence of 25 years to life, whether it should be 15 years or 10 years. It is not up to prosecutors, who are not responsible to any constituents. They are not responsible directly to the public. They do not have to go to the public every four years and make a pitch for the retention of their job. Neither does a judge, but we ask judges to consider the particulars in an individual case and determine whether it warrants five years, 10 years, or something in between and to make a judicious decision based on the facts of the case. We would actually be taking away that ability of the justices to be able to render a decision.

I am sure there will be a member of the Liberal caucus who will stand and attack some past Conservative government's record, that we can go back and forth to the 19th century if we want to, to what previous governments did or other previous governments did not do, but we are looking at the record of the past three years. That is where the focus should be.

This piece of legislation comes to us as an omnibus bill. It should have come to us as pieces of legislation, different focus areas that could have been proposed in the House. It is not as if we have a maximum load that we can take on and afterwards we say we simply cannot take on any more legislation in the House. The government has shown a great interest in guillotine motions. The Liberals have used over 50 now, even after saying they would not do so and would allow fulsome debate in the House. There is no reason why this piece of legislation could not have been broken up into different pieces so that members could consider whether in fact criminal acts of sabotage were serious enough to perhaps warrant full consideration by indictable offence, and whether that would be the best way to proceed.

Forgery or uttering a forged passport, the selling or purchasing of an office, and the bribery of public officials are serious offences and there should be no opportunity for a prosecutor to elect to have them hybridized and go by summary conviction. The same applies to prison breach, assisting an escape, infanticide and participation in activities of a criminal organization.

Just this morning, as I was providing a tour for my constituents through the House of Commons, the Minister of Public Safety was outside announcing that the government would spend $86 million to fight organized crime. On this same day, his government is proposing that we hybridize the offence of participating in the activities of a criminal organization and handing such decisions over to a prosecutor to decide whether the offence is serious enough, even before a judge has a chance to listen to the facts of the case and an individual's particular circumstance or participation.

This is why I used this Yiddish proverb, “The gift is not as precious as first thought”. It is a very good proverb and someday I will be able to actually say it in Yiddish.

If the gift is that we are going to reduce the bottlenecks in our provincial courts and reduce wait times, then we need to appoint more judges so they can hear more cases.

Provincial governments should be looking at more court space. The City of Calgary built a brand new court building expressly because there was a problem with securing court space. Judges needed the space to hear cases.

If this legislation is the government's gift, if this legislation is its attempt to resolve the problem, and it is not worth it, then the government should go back to the drawing board. This legislation could be dealt with piece by piece and the parts that many members of the official opposition said they could agree with could be expedited to the other place.

To their credit, government members on the justice committee agreed that terrorism and genocide are pretty serious offences and, therefore, should not be hybridized. I think members would agree with me that the selling or purchasing of an office, and I do not mean in this case a corporate office, but an elected office, is a serious offence and does not deserve to be hybridized in any way.

It is a matter of process here. Had this omnibus piece of legislation been broken out into its parts and there been an attempt to reach consensus on certain parts, I think it would have passed, because we agree with most pieces of it. That has happened before in the House. I have seen all parties agree that a particular piece of legislation should pass more quickly than another. Maybe certain portions of Bill C-75 could have been passed more quickly. Instead, we are having a more fulsome debate so that members on all sides can explain the concerns their constituents have expressed about the contents of this legislation.

Sabotage is a serious crime. It should not be up to a prosecutor to decide whether it is deserving of a faster process because people are busy. Attorneys general in every single province give direction to their prosecutors. They are told to prioritize certain cases over others. There is only so much time in a prosecutor's day and I understand that cases need to be prioritized, and that is led by the attorney general of the respective province. That is a fair process.

At the same time, however, it is Parliament that is supposed to decide what is or is not a serious offence. What the government is doing here looks like a copy and paste job. It is just taking giant sections of the Criminal Code and dumping them into the bill. It is as if all of those sections should be hybridized in a vain attempt to find some type of time saving for judges. Judges will not have a chance to listen to the contents of every particular case like we expect them to do.

I will not be able to support this piece of legislation. It is simply defective in its content. It is defective in its process. Perhaps the small number of amendments that government members on justice committee accepted is a good step in the right direction. There should be far more amendments to this piece of legislation before it would, in any way, be permissible to pass it through the House.

[Arif Virani, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I thank the member for Calgary Shepard for his contributions in the House.

With respect to judicial appointments, the Minister of Justice has appointed 235 judges thus far in each of the past few years. That is more judges than have been appointed by any minister of any political stripe in the last two decades, and it includes 34 judges in the member's province alone.

The member questions the ability to speed up the processes in compliance with the Jordan decision. I am going to put to him three statistics and I ask for his comments.

The first statistic is that an administration of justice offence is an offence such as breach of curfew. This type of offence has increased by 8% in the system since 2004. One in 10 incidents reported to the police involved an administration offence and four in 10 cases in adult criminal courts included at least one administration of justice offence.

Given those statistics would the member opposite agree with me that when we take those types of administration of justice charges, which are criminalized right now and are clogging up the system, and move them to a separate administrative judicial referral hearing, we are addressing the very backlog he has identified as a problem in this country for delivering justice more quickly?

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Madam Speaker, the member prefaced his commentary with statistics, and there is one point that I cannot pass up mentioning, because it was that justice minister who blew up the entire judicial advisory committee appointment process, where they heard advice from those committees on who should be appointed to become judges.

The Liberals created the system that led to the backlog of appointments, so they do not deserve any credit for any appointment they have made since then. The Liberals are the ones that caused the situation that they are catching up on to fix today.

[Colin Fraser, Liberal, West Nova, NS]

Madam Speaker, I appreciate my friend's speech, but there were a number of things that I cannot agree with.

First of all, the member indicated that it should not be up to a prosecutor to determine the seriousness of an offence. I wonder if my hon. friend understands that currently 152 Criminal Code offences are hybrid offences, some of which can be very serious, including sexual assault. Some of these hybrid offences can be completed in a range of ways. We trust our Crown prosecutors to make determinations on a case-by-case basis every day.

Would the member not agree with me that the Crown does an effective job dealing with the cases before it, based on the circumstances of the offence?

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Madam Speaker, I listened intently to the previous contributions to the debate by the member.

He raises a good point. Right now prosecutors have a great deal of leeway in how they proceed with their cases. Again, as I mentioned, in cases such as sabotage, prison breach, participation in the activities of a criminal organization, I think the judge should be the one to determine, based on the matters of the case, both how long the person should spend in jail and the conditions, in cases where they convict the person of the crime involved.

It is the House that decides what the maximum and the minimum should be in those particular cases. The prosecutor makes the case; the defence defends them. We do entrust unto them a great deal of leeway. However, in cases of sabotage, as I mentioned, and selling or purchasing an office, infanticide, no, it should then be up to the judge to hear the complete case.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Madam Speaker, the member for Calgary Shepard is absolutely right.

What this bill does is to take discretion away from judges to fashion sentences having regard for the individual circumstances of a case, and it puts it in the hands of prosecutors in a non-transparent and arbitrary way.

The member made reference to some of the offences that are hybridized. I would draw his attention to another, including selling young women and men into sexual slavery, as well as administering date rape drugs. If we are going down this road, where do we draw the line? Maybe murder should be a hybrid offence next.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Madam Speaker, the member for St. Albert—Edmonton is right.

Herein lies the problem, in that simply too many offences are being hybridized. If it were a piecemeal approach, section by section, and if they had combined them together into bite-sized pieces of legislation, including an easier way to explain why we are doing this, we would not be in a situation where the list of the offences the government is proposing to hybridize raises red flags all over the place.

This is the wrong way to build legislation. Omnibus justice legislation in the House simply does not work. It raises too many questions. Too many members have issues with particular sections they want to see removed. The government should go back to the drawing board and start over.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Madam Speaker, during this debate today we heard words such as hybridization, tough on crime and speeding up the judicial system. I will remind the House and Canadians who are listening and are tuned into this debate that it was probably on day 10 of the 2015 campaign that the member for Papineau said that, under his government, he would let debate reign and would not resort to such parliamentary tricks as closure and limiting debate. He also said his government would not resort to legislative tricks to avoid scrutiny, such as omnibus bills. Here we have a bill that is well over 350 pages long, legislation that encompasses three bills. I think that probably speaks more to the current government's legislative failure than a lot of other things.

One of the things the Liberals always say is that they are protecting Canadians. I do not feel that Bill C-75 does that. That said, I will preface my speech by saying that I am not a lawyer, nor do I profess to be one, but we have seen instances over the course of the last three years where the Liberals and the government like to say they are tough on crime and that they are standing up for victims' rights, and yet we have seen recently a convicted murderer being transferred to a healing lodge. She had a key to her room and could come and go as she pleased. This murderer had lured an eight year old away from her school and then she and her partner murdered young Tori Stafford. For weeks the Prime Minister and the Minister of Public Safety said that it was not in their power to change that. However, it was done. They probably blame the Conservatives for that, because they blamed us for politicizing this event. Then last week, Tori's father and family came to the Hill and protested on the steps of Parliament. They not only begged the Prime Minister and the minister to change that, but they also shamed them into changing the rules, and today, as a result of that public shaming, we saw the Liberals change the rules, and that murderer is now behind bars.

Why am I bringing this up? It is because we are talking about Bill C-75, which hybridizes certain offences that were previously dealt with by indictment only. Why were they classified by indictment? It is because they include some of the most serious offences. I know our hon. colleague from Calgary Shepard brought this up. Actually, his speech was bang on.

Let us talk about some of these offences that have now been hybridized. There is the punishment for infanticide, concealing the body of a child, abduction of a person under 16 or abduction of a person under 14, administering a noxious substance, and enslaving a male or female into prostitution. Those are some of the crimes that will be hybridized and take away the discretion of a judge to be able to levy serious punishment for some of these serious crimes.

I sat at committee during some of the testimony relating to Bill C-75. I had the opportunity to sit through two sessions of that. Criminal defence lawyers who witnessed at committee offered that, while there were some good changes in Bill C-75, one of the key points that was missing from the bill was the filling of judicial vacancies and how that would help.

I heard the arguments of those across the way who are blaming the previous government. The Liberals want to put their record up against the record of the Conservatives. As our hon. colleague from Calgary Shepard so aptly put it, why are they always doing that?

The Liberals have been in government now for three years, yet they always say we should have seen it when the Conservatives had it or could we imagine if the NDP had it. However, their failures are their own. At times, the Minister of Justice has held records for the most judicial vacancies.

I will offer this for our hon. colleagues across the way who are going to point their fingers at us. The Jordan decision came about in July of 2016. We would think the Jordan decision would have spurred the minister on to fill those judicial vacancies. Why is that such a key issue? In rural communities such as mine and other areas right across Canada, it is tough to get a judge at times. What happens is that those cases get thrown out. Prolific offenders in some of our communities are the ones who are getting out and 90% of the crimes are committed by them.

The Liberals talk about being tough on crime. The Minister of Public Safety could not say the word “murder”. Now it is a bad practice. The people who are crossing our borders illegally are now crossing the border irregularly.

Also, that brings me to another point. With Bill C-75, I cannot call my wife a spouse anymore. The term is “intimate partner”. I have never introduced my wife that way. I think I would probably get slapped. That goes along the lines of the Prime Minister's comments about “peoplekind”. We cannot say “mankind” anymore. It is “peoplekind” He said he was joking. I doubt it.

Service Canada is changing the vocabulary on its forms. It is removing “father, mother, Mr. Miss, Mrs.” I do not know whether my colleagues have ever introduced their partners or spouses as their intimate partners. It is ridiculous. How far we have fallen? It is crazy.

The Liberals said they were going to do away with omnibus bills. Here we have a 350-page document that does not give opposition members an opportunity to fully engage. It does not give the electors who elect opposition members an opportunity to fully have a say.

The government has shown contempt for the House time and again by closure and by continuing to table these omnibus bills. It is quite shameful.

The Liberals like to say that they are consulting with Canadians. By that, they mean they will invite somebody to speak for seven minutes at committee, and that is consultation. They also like to say they work collaboratively across the floor with the opposition and that all parties have a say. However, we know that it is their way or the highway, that they know best. It really is quite shameful. What the Liberals are doing and saying behind closed doors is completely different than what they want their public image to be. I should probably watch what I am saying. Maybe the Prime Minister will not agree to take a picture with me now.

Bill C-75 is flawed legislation. We have heard it is rushed legislation.

I want to go back to some of the hybridized offences, such as polygamy, forced marriage and marriage under the age of 16. If Canadians are listening, that is right. Their government wants to make forced marriage and marriage under the age of 16 a hybridized offence. That is shameful. Canadians should be afraid of that and alarmed at what the government is doing. It is not standing up for victims and it is making it harder for police agencies to do their job. This legislation is flawed.

[Arif Virani, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I am quite troubled by some of the comments of the member opposite. I appreciate the fact that there is an effort to simplify vocabulary and make things understandable for people in the chamber and those watching on television. However, the reason the definition of “intimate partner violence” is entrenched in law is because domestic violence and violence between sexual partners is a very troubling and problematic matter about which all parliamentarians should be concerned. Today in this chamber, even members of his caucus, in response to questions I raised or on their own volition, have agreed that the changes to intimate partner violence form a critical part of the legislation with which most members can agree.

I will give the member one more opportunity to not make light of the situation. Does he believe that when a definition is expanded so things like “strangulation”, “choking” and “suffocation” are deemed an elevated form of assault that judges need to take note of when issuing orders and harsher sentences for such violence, whether it involves a current partner or a former partner, is a step in the right direction?

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Madam Speaker, I was not referring to that part of legislation. I was referring to the fact that we cannot talk about our spouse anymore as a spouse and we have to use the term “intimate partner”. Violence against intimate partners, spouses or loved ones is shameful and wrong. I stand here unequivocally in support of what our colleague across the way has said. I question the terminology, not the law behind it.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, it is interesting to hear Conservatives try to come across as if they are really tough on crime and stand for the victims when it is just not true. Let me give the example of Tori Stafford. At least three times today, the Conservatives have stood in their place trying to give the impression they are really tough on crime. When Stephen Harper was the prime minister, murders were transferred to healing lodges, sadly, over 12 of them.

Could the member tell me why this so-called tough on Stephen Harper Conservative Party crime file did nothing on those files, on those child killers? Why were they allowed to go to medium-security prisons when the Conservatives sat in government?

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Madam Speaker, I was not elected at the time so cannot comment on that. However, I can comment on the current Prime Minister and the current Minister of Public Safety's inability to get the job done and act when it matters the most. Instead, it took the family of Tori Stafford to come to Ottawa to publicly shame and beg the Prime Minister and minister to act, and that is shameful.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Madam Speaker, the member for Cariboo—Prince George went through a long list of what are currently serious indictable offences the government is watering down by reclassifying them to be hybrid offences. Another offence he did not mention, which I would be interested in his comments on, is impaired driving causing bodily harm.

We know impaired driving is the leading criminal cause of death in Canada. However, instead of holding to account those individuals who make the choice to drink and drive and, as a result, injure another person, the government is going to hybridize that offence. What kind of message does that send?

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Madam Speaker, I was not going to touch on that because, as most in the House know, my brother Fabian was killed by a drunk driver on March 17, 1990. It is shameful what the government is doing. To hybridize bodily harm by impaired driving is shameful. It begs the question as to what the thoughts of Mothers Against Drunk Driving are on this, because it just revictimizes us and brings up the old wounds of those we have lost.

[The Assistant Deputy Speaker, Carol Hughes]

It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Saint-Hyacinthe—Bagot, Poverty.

Resuming debate, the hon. member for Haldimand—Norfolk.